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STATE v. CORNELIUS

No. 89-0446-CR.

152 Wis.2d 272 (1989)

448 N.W.2d 434

STATE of Wisconsin, Plaintiff-Appellant, v. Maurice J. CORNELIUS, Defendant-Respondent.

Court of Appeals of Wisconsin.

Decided September 12, 1989.

Attorney(s) appearing for the Case

For plaintiff-appellant, there were briefs submitted by Donald J. Hanaway, attorney general, and Thomas J. Balistreri, assistant attorney general, and oral argument by Thomas J. Balistreri.

For defendant-respondent, there was a brief filed by Henry R. Schultz, first assistant state public defender and Mary E. Weitrovich, first assistant state public defender and oral argument by Henry R. Schultz.

Before Cane, P.J., LaRocque and Myse, JJ.

CANE, P.J.

The state appeals the dismissal of two counts of homicide against Maurice Cornelius at the completion of the preliminary hearing. Cornelius' homicide charges stem from an auto accident that fatally injured a fetus. The parties dispute whether the fetus died prior to or after its birth. The trial court held that the fetus was not born alive and therefore could not be considered the victim of a homicide. The court also

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